SECOND DIVISION

G.R. No. 138033             February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the
reversal of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No.
17271 as reiterated in its March 31, 1999 resolution2 denying petitioner’s motion for
reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David
(CHITO) guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and
within the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering
the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying
effects, did then and there willfully, unlawfully and feloniously commenced the commission of
rape by lying on top of her with the intention to have carnal knowledge with her but was unable
to perform all the acts of execution by reason of some cause or accident other than his own
spontaneous desistance, said acts being committed against her will and consent to her damage
and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5
Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa,
Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some
detail in the decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H.
Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou
Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right
in front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece
of cloth pressed on her face. She struggled but could not move. Somebody was pinning her down
on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth
with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU
continued fighting off her attacker by kicking him until at last her right hand got free. With this
…the opportunity presented itself when she was able to grab hold of his sex organ which she
then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx.
Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan
ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out
during their struggle was the feel of her attacker’s clothes and weight. His upper garment was of
cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17). He … was
wearing a t-shirt and shorts … Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue …
(TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left
opened, another window inside her bedroom was now open. Her attacker had fled from her room
going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one
without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly
until a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita,
mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at
1:30 in the early morning of December 13, 1991, wearing a white t-shirt with “‘…a marking on
the front of the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word
‘1946’ ‘UST Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the
brand name “Adidas” (TSN, October 16, 1992, p.7) and requested permission to go up to Room
306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking
permission to enter, only Joseph Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] …. S/G Ferolin made the following entry in the
security guard’s logbook …:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our
tenant this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by
Joseph Bernard Africa (Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by
the time CHITO’s knocking on the door woke him up, …. He was able to fix the time of
CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was
awakened by the knock at the door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23)
when he let the latter in. …. It was at around 3 o’clock in the morning of December 13, 1991
when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista
(Bernard), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the
open window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO …. He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was
in Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see
if the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited
CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon
of December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and
Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look
for anything not belonging to them in their Unit. While they were outside Room 310 talking with
the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the
Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp.
44-45) from inside their unit which they did not know was there and surrender the same to the
investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO
(Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p.
45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-
shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief ,
three (3) white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to him
…. The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what
consisted mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time
Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that
afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom
where Renato had seen CHITO leave it. Not until later that night at past 9 o’clock in Camp
Crame, however, did Renato know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in
Camp Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted
laboratory examination on the specimen collated and submitted…. Her Chemistry Report No. C-
487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above
stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied
committing the crime imputed to him or making at any time amorous advances on Malou.
Unfolding a different version of the incident, the defense sought to establish the following, as
culled from the same decision of the appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and
Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …,
was known to him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong
tagalog over dark pants and leather shoes, arrived at their Fraternity house located at … Dos
Castillas, Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was
included in the entourage of some fifty (50) fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street,
North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four
(4) presidential nominees of the Fraternity, CHITO included, were being dunked one by one into
the pool. xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he
was dunked. Perla Duran, …, offered each … dry clothes to change into and CHITO put on the
white t-shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol
TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15),
CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13,
1991 and proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had
left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush
(Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch,
approached. Because of this, CHITO also looked at his own watch and saw that the time was
1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie
window and for five (5) minutes vainly tried to open the door until Rommel Montes, …
approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid.,
pp. 26-29). Rommel tried to open the door of Unit 306 … but was likewise unsuccessful. CHITO
then decided to just call out to Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the
door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO
and went inside the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had
on the same short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p.
20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his
school uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked
the latter why this was so and, without elaborating on it, Joseph told him that something had
happened and to just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not
able to identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36).
xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When
two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented himself.
Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room
306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and
the two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked
to him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to
undergo physical examination at the Camp Crame Hospital ….. At the hospital, … CHITO and
Joseph were physically examined by a certain Dr. de Guzman who told them to strip ….

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him
by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to
7 o’clock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9
P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS
agents had taken it there and it was not opened up in his presence but the contents of the bag
were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask
CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray
bag which he had left at Room 306 in the early evening of December 12, 1991 before going to
the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag
when he returned to the apartment at past 1:00 o’clock in the early morning of December 13,
1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning to
go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December
13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid).
He only found out for the first time that the black Adidas short pants was alluded to be among
the items inside his gray bag late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991
party held in Dr. Duran’s place at Greenhills, riding on the same car going to and coming from
the party and dropping the petitioner off the Celestial Marie building after the party. Both were
one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of
the said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of
December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and
white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with
stripes after the dunking party held in her father’s house.8 Presented as defense expert witness
was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor
staining the cloth on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted
rape and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the
accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of
attempted rape as principal and as charged in the information and hereby sentences him to suffer
an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of
Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all
the accessory penalties provided by law, and for the accused to pay the offended party Martina
Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus
reasonable Attorney’s fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R.
CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999,
affirmed the trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a
quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the
offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial

evidence since the prosecution failed to satisfy all the requisites for conviction based
thereon.
 3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.

6. In failing to appreciate in his favor the constitutional presumption of innocence and

that moral certainty has not been met, hence, he should be acquitted on the ground that
the offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA
erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the
crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner’s acquittal, but not necessarily because
there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who
pinned Malou down on the bed in the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive
identification. A witness may identify a suspect or accused as the offender as an eyewitness to
the very act of the commission of the crime. This constitutes direct evidence. There may,
however, be instances where, although a witness may not have actually witnessed the very act of
commission of a crime, he may still be able to positively identify a suspect or accused as the
perpetrator of a crime as when, for instance, the latter is the person or one of the persons last
seen with the victim immediately before and right after the commission of the crime. This is the
second type of positive identification, which forms part of circumstantial evidence.13 In the
absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances, the
prosecution of vicious felons who committed heinous crimes in secret or secluded places will be
hard, if not well-nigh impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial
evidence may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for

conviction if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and
 c) The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial
evidence, which, when taken together with the other pieces of evidence constituting an unbroken
chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in
question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of
the petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and
egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin,
but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts
and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of
December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of
her intruder’s apparel to be something made of cotton material on top and shorts that felt satin-
smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the
handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin
short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time,
Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU during the
incident revealed that the handkerchief and MALOU’s night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what MALOU sustained on that part
of her face where the chemical-soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced
the performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under the law, for there can not
be any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds
that if petitioner’s intention was otherwise, he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using
force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and
(3) When the woman is under twelve years of age or is demented. Under Article 6, in relation to
the aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M.
Recto in People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that
which has a logical connection to a particular, concrete offense; that which is the beginning of
the execution of the offense by overt acts of the perpetrator, leading directly to its realization and
consummation." Absent the unavoidable connection, like the logical and natural relation of the
cause and its effect, as where the purpose of the offender in performing an act is not certain,
meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of
the Penal Code.18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an
overt act of rape.1avvphil.net

Overt or external act has been defined as some physical activity or deed, indicating the intention
to commit a particular crime, more than a mere planning or preparation, which if carried out to
its complete termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce
her to sleep as an overt act that will logically and necessarily ripen into rape. As it were,
petitioner did not commence at all the performance of any act indicative of an intent or attempt
to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was
no attempt on his part to undress Malou, let alone touch her private part. For what reason
petitioner wanted the complainant unconscious, if that was really his immediate intention, is
anybody’s guess. The CA maintained that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the appellate court even anticipated the next
step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the
CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His
sexual organ is not yet exposed because his intended victim is still struggling. Where the
intended victim is an educated woman already mature in age, it is very unlikely that a rapist
would be in his naked glory before even starting his attack on her. He has to make her lose her
guard first, or as in this case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the
rule on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for
proof required to establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted
rape, pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus,
for there to be an attempted rape, the accused must have commenced the act of penetrating his
sexual organ to the vagina of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her
breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly
obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner
actually commenced to force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged
locus criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude
that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises,
of any wrongdoing whatsoever. The information filed against petitioner contained an allegation
that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And
during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth
and having struggled after petitioner held her tightly and pinned her down. Verily, while the
series of acts committed by the petitioner do not determine attempted rape, as earlier discussed,
they constitute unjust vexation punishable as light coercion under the second paragraph of
Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an
accused of a crime the right to be informed of the nature and cause of the accusation,24 it cannot
be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded
against. To be sure, the information against petitioner contains sufficient details to enable him to
make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation
exists even without the element of restraint or compulsion for the reason that this term is broad
enough to include any human conduct which, although not productive of some physical or
material harm, would unjustly annoy or irritate an innocent person.25 The paramount question is
whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the
mind of the person to whom it is directed.26 That Malou, after the incident in question, cried
while relating to her classmates what she perceived to be a sexual attack and the fact that she
filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by
the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from ₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional
Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner,
however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of
arresto menor and to pay a fine of ₱200.00, with the accessory penalties thereof and to pay the
costs.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairperson

( On Leave )
RENATO C. CORONA
ANGELINA SANDOVAL-GUTIERREZ*
Asscociate Justice
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

REYNATO S .PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation,
it is hereby certified that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
* On Leave.
1
Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate
Justices Romeo A. Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237.
2
Id., p. 273.
3
Id., pp. 120-155.
4
Original Records, pp. 1-3.
5
Id., p. 42.
6
Rollo, pp. 201-212.
7
TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24.
8
TSN, January 17, 1994, pp. 7-10.
9
TSN, January 17, 1994, p. 24.
10
Rollo, pp. 120-155.
11
See Note #1, supra.
12
See Note #2, supra.
13
People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde, 382 Phil.
718 (2000).
14
People vs. Sevileno, 425 SCRA 247 (2004), citing People vs. Navarro, 407 SCRA 221
(2003).
15
Comment, pp. 20-21; Rollo, pp. 302-303.
16
People vs. Campuhan, 385 Phil. 912 (2000).
17
61 Phil. 703, 705 (1935).
18
Ibid.
19
Reyes, The Revised Penal Code, 1998 Edition, p. 91.
20
Rollo, pp. 222-223.
21
People vs. Canlas, et al., 423 Phil. 665 (2001).
22
431 Phil. 786 (2002).
23
416 SCRA 506 (2003).
24
Sec. 14(2), Art. III.
25
Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.
26
Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People vs. Reyes, 60 Phil. 369
[1934].